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Downwind, LLC v. United States Department of Energy

United States District Court, E.D. Arkansas

February 7, 2017

DOWNWIND, LLC and GOLDEN BRIDGE, LLC, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF ENERGY; GRACE BOCHENEK, in her official capacity as Acting Secretary of the United States Department of Energy; SOUTHWESTERN POWER ADMINISTRATION; SCOTT CARPENTER, in his official capacity as Administrator of the Southwestern Power Administration, Defendants, PLAINS AND EASTERN CLEAN LINE HOLDINGS, LLC Defendant-Intervenor.

          FOR PLAINTIFFS: JORDAN P. WIMPY CHRISTOPHER L. TRAVIS GILL RAGON OWEN

          FOR FEDERAL DEFENDANTS: JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division STEPHEN FINN U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section JAMES J. DUBOIS U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section READE E. WILSON U.S. Department of Justice Environment & Natural Resources Division Land Acquisition

          FOR DEFENDANT-INTERVENOR: MICHAEL B. HEISTER STEVEN W. QUATTLEBAUM, ARK. BAR #84127 JOHN E. TULL III, ARK. BAR #84150 MICHAEL B. HEISTER, ARK. BAR #2002091 QUATTLEBAUM, GROOMS & TULL PLLC

          STIPULATED CONFIDENTIALITY ORDER

          D.P.MARSHALL JR.UNITED STATES DISTRICT JUDGE.

         Pursuant to Rules 5.2 and 26(c) of the Federal Rules of Civil Procedure and Local Rule 7.4, this Stipulated Confidentiality Order ("Confidentiality Order") establishes special protection for confidential information to prevent public disclosure and use of such information for any purpose other than prosecuting this litigation. Rule 5.2 of the Federal Rules of Civil Procedure sets forth the procedures that must be followed when a party seeks to file material under seal.

         Plaintiffs in this case are Downwind LLC of Harrisburg, Arkansas, and Golden Bridge LLC of Fort Smith, Arkansas. Federal Defendants are the United States Department of Energy ("DOE"); Grace Bochenek, Acting Secretary of the United States Department of Energy, in her official capacity; the Southwestern Power Administration; and Scott Carpenter, Administrator, Southwestern Power Administration, in his official capacity. Defendant-Intervenor is Plains and Eastern Clean Line Holdings LLC ("Clean Line").

         Hereinafter, Plaintiffs, Federal Defendants, and Defendant-Intervenor are referred to individually as "a party" and collectively as "the parties."

         In defense of Plaintiffs' claims, Federal Defendants will lodge with the Court and serve on Plaintiffs and Defendant-Intervenor an Administrative Record. With respect to the Administrative Record to be filed, Federal Defendants will produce certain documents that contain confidential, proprietary or personal information that is exempt from public disclosure pursuant to the Freedom of Information Act, 5 U.S.C. § 552(b)(4), (6), & (7); information that has been or may be designated as critical electric infrastructure information pursuant to Section 215A of the Federal Power Act, 16 U.S.C. § 824o-l or critical energy infrastructure information pursuant to the rules and regulations of the Federal Energy Regulatory Commission, 18 C.F.R. § 388.113; and information subject to withholding from public disclosure under Section 304 of the National Historic Preservation Act. The parties stipulate to this Confidentiality Order in order to allow for efficient handling of documents designated as containing Confidential Information and to preserve the confidentiality of such documents during the course of this litigation.

         Thus, for good cause having been shown, IT IS HEREBY ORDERED:

         1. Confidential Information:

         "Confidential Information" shall be defined as and refer to, information, data, and documents, in any form, the production of which would, in the good faith belief of the Federal Defendants or Defendant-Intervenors, result in the disclosure of one of the following categories of information: information exempt from public disclosure under 5 U.S.C. § 552(b)(4) & (6) or Rule 26(c)(1)(G); information exempt from public disclosure under 5 U.S.C. § 552(b)(7) or applicable state or federal privacy law; information which has been or may be properly designated as Critical Electric Infrastructure Information pursuant to Section 215A of the Federal Power Act, 16 U.S.C. § 824o-l or Critical Energy Infrastructure Information under the rules and regulations of the Federal Energy Regulatory Commission, 18 C.F.R. § 388.113, collectively "CEII"; information the disclosure of which is prohibited or limited by statute, or court order and/or other applicable rule; and information which has been withheld from disclosure pursuant to Section 304 of the National Historic Preservation Act, 16 U.S.C. § 470w-3. Federal Defendants will identify information in the Administrative Record as Confidential Information by marking it as "Confidential - Document Subject to Confidentiality Order, " either in writing or on the record. Confidential Information includes, but is not limited to, paper documents or information stored or recorded in the form of electronic or magnetic media. If the material designated as Confidential Information contains CEII, Federal Defendants shall additionally mark each page containing CEII with the words "Contains CEII - Do Not Release."

         2. Scope: The protections conferred by this Confidentiality Order cover not only Confidential Information, as defined above, but also any information copied or extracted from it, copies, excerpts, summaries, or compilations, as well as conversations or presentations by the parties or counsel to or in court or in other settings where Confidential Information might be revealed.

         3. Use of Confidential Information: A recipient of Confidential Information may use Confidential Information that is disclosed or produced by another party in connection with this case only for prosecuting, defending, or attempting to settle this litigation. Confidential Information may be disclosed only to the categories of persons and under the conditions described in this Confidentiality Order. When the litigation has been terminated, a recipient of Confidential Information must comply with the provisions of Paragraph 9, below (Final Disposition).

         Confidential Information must be stored and maintained by the recipient at a location and in a secure manner that ensures that access is limited to the persons authorized under this Confidentiality Order. The parties shall not make or issue any public announcements or press releases (including, but not limited to, posts on websites, social media, blogs, "Tweets" on Twitter, or any other Internet-based or electronic means) that include, refer to, or rely on Confidential Information. An announcement is public if it is accessible to individuals who have not agreed to be bound by this Confidentiality Order and who are not employed by a party to this litigation. In the event that, after the filing of the public and non-public versions of the Administrative Record, information that has been included in the public version of the Administrative Record is determined to be Confidential Information, all parties shall meet their obligation to secure and maintain later determined Confidential Information by removing the Confidential Information from the public domain and, to the extent that a party previously provided or gave access to ...


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